The note, however, remaining unpaid, the plaintiff at length put it in suit against the defendant.

At the trial, before Littledale, J., last Winchester assizes, a verdict was, upon proof of the foregoing facts, found for the defendant, on the ground that the plaintiff had, by the amount in coals delivered by John Watson, received as much as the other creditors, and that any contract for more was void as a fraud on them.

Bompas, Serjt., now moved to set aside this verdict, and for a new trial. He contended that the coal transaction was no fraud on the other creditors. and he distinguished the case from all the cases on composition agreements, (beginning with Cockshott v. Bennett, 2 T. R. 763, and ending with Thomas v. Courtney, 1 B. & A. 1,) in the following respects : —

1st, That this was not by or at the instigation of the insolvent, nor even at the request of the creditor, but was a spontaneous and honorable offer on the part of a relation of the debtor, to make up, out of his own substance, a loss occasioned by his brother.

2dly, That it was attended with no detriment, either to the insolvent or the creditors at large; and the ground of many of the decisions was, the injury to the general body of creditors.

3dly, That, inasmuch as the plaintiff was the last to sign, the other creditors could not have been influenced by his supposed concurrence.

Lastly, he contended, that though an agreement for a particular creditor to receive more than the others was void in itself, and though it might under some circumstances avoid a release given to the debtor, yet it had never been holden to avoid the debtor's stipulation to pay the sum specified in the composition deed. The plaintiff might, perhaps, have failed to enforce John Watson's agreement to supply him with coals, but that would not affect the validity of the debtor's agreement to pay 10s. in the pound, or of a note given in pursuance of such agreement.

BEST, C. J. There is not the slightest pretence for this motion. These agreements for composition with creditors require the strictest good faith. If I see a man, acquainted with the circumstances of the debtor, agreeing to sign a paper, under which he is to be satisfied with 10s. in the pound, I conclude he has exercised a judgment on the subject. Am I not cheated if he procures another to give him 10s. more? Perhaps there is no case exactly like this; but as no two cases are ever alike in all respects, the best way is to extract a principle from analogous decisions; and the principle to be extracted from all the cases on this subject is, that a man who enters into an engagement of this kind is not to be deceived.

It has been argued, that here the debtor was not injured, nor the funds for other creditors rendered less available. No doubt those topics have been urged in some of the cases; but one question always is, Whether the judgment of the creditors has been influenced by the supposition, that all are to suffer in the same proportion. That was the case here. It is a very different thing, where, without any previous contract, a debtor, after having discharged his engagements under the composition deed, honorably adds the remainder. A transaction of that kind is clearly distinguishable from the present, where, by previous and express contract, the whole of the debt, or an equivalent, is secured to a particular creditor. Here the plaintiff has had his 10s. in the pound in coal, and he cannot have it again in money. PARK, J. It seems to me only necessary to distinguish between a gratuitous gift after the payment under the composition, and a previous unVOL. XV.-83

derstanding that a particular creditor shall receive more than the others. Here there was such a previous understanding, and the verdict was perfectly proper.

BURROUGH, J., and GASELEE, J., concurring,

The rule was refused.

PROVIS and ROWE v. REED.- p. 435.

1. Where one of the attesting witnesses to a will is dead, witnesses may be called to his character.

2. Declarations of the testator in subversion of a will are not admissible in evidence though both parties claim under him, and though they are offered with a view to show the manner in which the will was executed.

WRIT of entry sur abatement.

The demandants claimed as heirs of Henry Sara. The defendant, (who had been in possession twenty-seven years,) under his will.

The demandants proposed to show that the will was executed in the presence of only two attesting witnesses, and that the name of a third was added after the death of the devisor.

At the trial, before Gaselee, J., last Cornwall assizes, the demandant's pedigree having been admitted, the learned Judge ruled that the defendant was entitled to begin, and he having by one of the attesting witnesses (a servant of the devisor) established the due execution of the will in the presence of three witnesses, one of whom was Mr. Scott, the attorney who had prepared the will, but was since dead, as well as the third attesting witness, The demandants called a person who deposed that the day after the death of the devisor, Mr. Scott said to him, "There is an oversight; the will is not properly executed; but it is not of much consequence; we can manage it between ourselves;" that he then called a female, and desired her to write her name under those of the two attesting witnesses.

The demandants then proposed to give evidence of the following among other declarations made by the devisor, touching the will:

"Tom Reed (the defendant) has been trying to get my property, but neither he nor his shall have it. Scott drew up a paper, and they got me to sign it; but never fear; I know that it is not worth, to Reed, one farthing."-"My land goes to my own family. Peggy, (one of the demandants,) remember the land is yours; if I don't live to make my will, when I'm dead see that you are righted."

The learned Judge rejected the evidence, and on the part of the defendant admitted witnesses to speak to the character of Scott, the attorney, who had prepared the will.

His character being of the highest order, the jury found a verdict for the defendant; whereupon

Taddy, Serjt., now moved for a new trial, on the ground that evidence of the testator's declarations had been improperly rejected, and evidence of the character of the attesting witness improperly admitted. Although in general declarations could not be received to defeat a written instrument yet these were admissible on two grounds: first, because they were the declarations of one under whom both parties claimed; the declarations, as it were, of an ancestor, a privy in estate; and secondly, because they were not offered to contradict the will, but merely to show whether two or three

witnesses were present at the execution. The evidence was quite dehors the will, and went to a fact altogether independent of the construction of the

instrument.

Then, Scott's character had nothing to do with the issue in the cause; evidence of character had never before been received in answer to naked facts. No issue had been joined on the character of Scott, and if the defendant was entitled to offer evidence of his good character, the demandants must have been equally entitled to offer evidence of an opposite description. They could not be prepared on such a point, and the power of raising it would lead to the utmost inconvenience. The rule in Bull. N. P. 295, was expressly contrary, and made no distinction in favour of witnesses to wills. [Gaselee, J. The same evidence was admitted in Doe d. Walker v. Stephenson, 3 Esp. N. P. C. 284, and that case was recognised in Bishop of Durham v. Beaumont, 1 Campb. 210.] They are only Nisi Prius decisions, and the case in Espinasse can scarcely be law, since, there, evidence is said to have been called to the character of two witnesses who were unimpeached. BEST, C. J. Two objections have been made to the verdict in this cause that evidence has been rejected which ought to have been received, and evidence received which ought to have been rejected. It has been insisted, that declarations of the testator were admissible in evidence to show that the will he had executed was not valid; but no case had been cited in support of such a position, and we shall not for the first time establish a doctrine which would render useless the precaution of making a will; for if such evidence were admissible, some witness would constantly be brought forward to set aside the most solemn instruments. Such a doctrine would be not only in the highest degree inconvenient, but contrary to the first principles of evidence, according to which the will itself is the best evidence which the nature of the case supplies. It has been urged, however, that the declarations are admissible as having been made by one under whom both of the contending parties claim, upon the same principle as the declarations of a common ancestor. Declarations of a common ancestor as to the state of his family, pedigree, and other matters peculiarly within his knowledge, are undoubtedly admissible in evidence ; but they are wholly different from declarations tending to impeach the validity of a written instrument, which have never yet been received; and I am clearly of opinion were properly rejected in the present instance.

Then, with regard to the imputations on the character of Scott, the attesting witness who prepared the will; if the demandants had merely imputed to him an error in judgment, perhaps the evidence would not have been admissible; but if it were imputed to Scott that, having caused a will to be executed imperfectly, he had added an attesting witness after the death of the testator; - that in effect he had committed a forgery; if his moral character were thus attacked, those who were interested in it had a right to defend it. A passage has been cited from Buller's Nisi Prius, and it has been contended that there is no distinction between the case of an attesting witness to a will, and the witnesses to bills, notes, and the like. But bills are usually instruments of a recent date, while wills are often undisputed till all the parties present at the execution of them have ceased to be in existence. The present writ of entry was sued out no less than twenty-seven years after the time of the transaction to which it relates. In such a case there is no way of protecting the character of a witness other than the admitting such evidence as has been here received In many cases necessity forms the law. The necessity of admitting the evidence in this case is manifest, and the two decisions which have been

cited, one of them from no less an authority than Lord Kenyon, are clearly in point. I have repeatedly tendered such evidence myself in similar cases when at the bar. I have had it tendered on the other side, and have never objected; and the common practice of Westminster Hall has always been to receive it. That practice, perhaps, is better evidence of the law even than decided cases; and the Court, therefore, cannot grant the rule which has been prayed on the part of the demandants.

PARK, J. I am of the same opinion on both points. The evidence of declarations of the testator incompatible with the validity of the will, was properly rejected. When the legislature has taken such care to prevent frauds in wills, and when it is considered how easily declarations may be extorted by artful persons after the intellect of a testator has been impaired by time, it would be most mischievous, and a violation of all established principles, to allow such declarations to be received in evidence.

Then, the testimony to the character of Scott was properly admitted according to the general understanding and practice of Westminster Hall for many years, and according to decided cases.

BURROUGH, J., referred to a case tried before him recently at the Exeter assizes, Doe, d. Teage, v. Wood, where evidence of the same kind was admitted to establish the character of a deceased attesting witness to a will. GASELEE, J., concurring with the rest of the Court, the rule was

He who lets, agrees to give possession, and if he fails to do so, the lessee may recover damages against him, and is not driven to bring an ejectment.

THE defendant had agreed to let the plaintiff certain premises per verba de præsenti; and this was an action for not letting him into possession, which, a preceding occupier having wrongfully refused to quit, the defendant was unable to effect.

At the trial, before Vaughan, B., last Cambridge assizes, the agreement having been proved, it was objected on behalf of the defendant, that the plaintiff had shown no breach, for that the agreement amounting to an actual demise of the premises, the plaintiff had an interest upon which he might have brought an ejectment, and it was no default in the defendant, if a person not claiming under him committed a wrong for which the plaintiff had a distinct remedy by ejectment. Supposing the law to be otherwise, every one who made a new demise would be liable to damages if an obstinate tenant held over.

but

A verdict, however, having been found for the plaintiff,

Peake, Serjt., moved to set it aside on the grounds urged at the trial;

The Court were all clearly of opinion, that he who lets, agrees to give possession, and not merely to give a chance of a lawsuit; and the breach assigned, being, that the defendant did not give the plaintiff possession, the rule was

Refused.

DOE, dem. DIXON and Another v. WILLIS and Another.-p. 441.

Where commissioners, under an inclosure, made an allotment in respect of R.'s land in 1824, Held, that the allotment passed by a subsequent conveyance of the land in 1824, although the commissioners' award was not executed till 1827.

THE lessors of the plaintiff claimed the lands sought to be recovered in this ejectment under a conveyance from Rose, a former owner, in trust to sell and pay off, first, certain incumbrances, and then a debt due from Rose to the lessors of the plaintiff. The conveyance bore date November, 1824, and the lessors of the plaintiff had had an equitable mortgage of the premises during three years preceding. Early in 1824, the commissioners, under an inclosure act, had made Rose an allotment in respect of the premises, but their award was not executed till 1827.

The defendants claimed under elegits issued upon judgments entered_up in November and December, 1824, subsequently to the conveyance. The action had been commenced early in that year.

At the trial before Vaughan, B., last Aylesbury assizes, it was contended on the part of the defendants, that the conveyance under which the lessors of the plaintiff claimed, was, under the statute of Elizabeth, fraudulent as against creditors, and that at all events the award of the commissioners under the inclosure not having been made till 1827, the allotment made by them to Rose did not pass under his conveyance to the lessors of the plaintiff.

The jury having found there was no fraud, and having given a verdict for the lessors of the plaintiff,

Taddy, Serjt., moved to set it aside on the grounds urged at the trial; but

The Court, after ascertaining from the learned Baron, that the question of fraud had been set at rest by the express finding of the jury, held that the allotment of the commissioners under the inclosure in respect of Rose's land, passed to the lessors of the plaintiff by the conveyance of the land, and the rule was

Refused.

WITHINGTON v. HERRING and Others.-p. 442.

Defendants entered into an agreement with C. to carry on for them certain mining speculations in America,-furnished him with instructions, a letter authorizing him to draw on them for 10,000l.,-and a power of attorney of the most extensive description, "to take and work mines, to purchase tools and materials, and erect the necessary buildings, and to execute any deeds or instruments he might deem necessary for the purpose."

C., after he had raised 10,000l. under the letter of authority, obtained of plaintiff, in America, 1,500l., which he applied to the defendant's use, and for the amount, drew bills on defendants, which he indorsed to plaintiff. He did not show the letter of authority to the plaintiff; there were no indorsements on it of sums previously raised,